Kerala High Court
Mohanan vs State Of Kerala on 30 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946
CRL.APPEAL NO. 421 OF 2014
AGAINST THE JUDGMENT DATED 30.04.2014 IN SC NO.348 OF
2012 OF THE VTH ADDITIONAL DISTRICT COURT, ERNAKULAM
APPELLANT/3RD ACCUSED:
VIJAYAN
AGED 50 YEARS,
S/O.GOPALAN, NAMBIATH VEEDU, NEAR N.S.S.SCHOOL,
AIRAPURAM VILLAGE, KUNNATHUNADU TALUK.
BY ADV SRI.RAMESH .P
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
2 DETECTIVE INSPECTOR
CBCID, OCW II, ERNAKULAM.
SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 21.05.2024, ALONG WITH CRL.A.422/2014, THE
COURT ON 30.05.2024 DELIVERED THE FOLLOWING:
2
Crl.Appeal Nos.421 & 422 of 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946
CRL.APPEAL NO. 422 OF 2014
AGAINST THE JUDGMENT DATED 30.04.2014 IN SC NO.348 OF
2012 OF THE VTH ADDITIONAL DISTRICT COURT, ERNAKULAM
APPELLANTS/ACCUSED 1 & 2:
1 MOHANAN
AGED 52 YEARS
S/O KESAVAN, RESIDING AT CHETHUKATT VEEDU,
ARAYANI CHUVADU BHAGAM, KOZHIPPILLY KARA,
PALAKKUZHA VILLAGE, ERNAKULAM DISTRICT,
PINCODE-686662.
2 VAISHAKH
AGED 22 YEARS
S/O MOHANAN, RESIDING AT CHETHUKATT VEEDU,
ARAYANI CHUVADU BHAGAM, KOZHIPPILLY KARA,
PALAKKUZHA VILLAGE, ERNAKULAM DISTRICT,
PINCODE-686662.
BY ADV SRI.PEEYUS A.KOTTAM
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, COCHIN-682031,
(REPRESENTED BY DETECTIVE INSPECTOR, CBCID, OCW
II, ERNAKULAM).
SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 21.05.2024, ALONG WITH CRL.A.421/2014, THE
COURT ON 30.05.2024 DELIVERED THE FOLLOWING:
3
Crl.Appeal Nos.421 & 422 of 2014
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal Nos.421 & 422 of 2014
-----------------------------------------------------------
Dated this the 30th day of May, 2024
JUDGMENT
These appeals are filed under Section 374(2) of the Code
of Criminal Procedure, 1973 (Code).
2. Accused Nos.1 to 3 in S.C.No.348 of 2012 before
the V Additional Sessions Judge, Ernakulam, are the
appellants. They were convicted by the learned Additional
Sessions Judge as per the judgment dated 30.04.2014 for an
offence punishable under Section 489C read with Section 34
of the Indian Penal Code, 1860 (IPC). Aggrieved by the said
conviction and consequent sentence, accused No.3 filed
Crl.Appeal No.421 of 2014 and accused Nos.1 and 2 filed
Crl.Appeal No.422 of 2014. Accused No.6 in the final report
who also tried along with them was acquitted. Accused Nos.4
and 5 in the final report were not available for trial since they
were absconding.
3. Heard the learned counsel for the appellants in the
respective appeals and the learned Public Prosecutor.
Crl.Appeal Nos.421 & 422 of 2014
4. The prosecution was launched with the following
allegations:
At about 1.40 p. m. on 28.03.2007 accused Nos.1 to 3 were
found at the KSRTC bus stand, Perumbavoor possessed with
counterfeit currency notes of 100 rupee denomination. The 1 st
accused was in possession of 15 notes, the 2 nd accused 3
notes and the 3rd accused 8 notes. In the ensued search, 25
similar counterfeit notes were found in the house of the 1 st
accused and four such currency notes were found in the house
of the 3rd accused. It was the 4th accused, who gave the said
counterfeit currency notes to accused Nos.1 to 3. The 4 th
accused obtained the same from the 5th accused and he from
the 6th accused. Accused Nos.1 to 3 possessed the counterfeit
currency notes knowingly and with the intention of using them
as genuine ones.
5. At the trial PWs.1 to 16 were examined and Exts.P1
to P22 were marked. MOs.1 to 4 were identified also. During
the examination under Section 313(1)(b) of the Code, all the
accused denied the incriminating circumstances appeared
Crl.Appeal Nos.421 & 422 of 2014
against them in evidence. They claimed innocence. DWs.1 to
4 were examined and Exts.D1 and D2 were marked on the
side of the accused. The trial court, after considering the said
evidence, found accused No.4 not guilty, whereas accused
Nos.1 to 3 guilty of the offence under Section 489C and not
guilty of the offence under Section 489B of the IPC.
6. The contentions of the appellants are that they
possessed the currency notes without knowing them to be
counterfeit ones and therefore their conviction for offence
under section 489C of the IPC is wrong. Although the factum
of recovery of currency notes from their possession by PW14
is not assailed, the case mooted by the prosecution
concerning the manner in which such recoveries were effected
is stoutly denied. It is their contention that in relation to the
agreement for sale of the motorcycle of accused No.1 to
accused No.4, Soman, an amount of Rs.5,500/- was paid and
it was the said currency notes which were found in their
possession. Not only that PW14 and other witnesses were
cross-examined in that line, but also the 1 st accused deposed
Crl.Appeal Nos.421 & 422 of 2014
before the court as DW4 admitting that they were in
possession of currency notes while they were taken to
Perumbavoor Police Station.
7. PW14, the Circle Inspector of Police, Perumbavoor,
is the detecting officer. Going by his version, accused Nos.1 to
3 were intercepted by him along with his colleagues at the
KSRTC bus stand at Perumbavoor on getting a reliable
information regarding their possessing counterfeit currency
notes. He deposed that on a search accused Nos.1 to 3 were
found in possession of counterfeit currency notes and
therefore he arrested them. He seized the currency notes as
per Ext.P1 mahazar with PWs.1 and 2 as witnesses. Both
these witnesses did not support the case of the prosecution.
They deposed to have signed the mahazar at the police
station. They denied having seen the seizure of the currency
notes. The motorcycle in the possession of the 2 nd accused
was seized as per Ext.P3 mahazar.
8. Soon after the arrest of accused Nos.1 to 3, houses
of accused No.1 and 3 were inspected. It is the version of
Crl.Appeal Nos.421 & 422 of 2014
PW14 that based on the information divulged by accused
No.1, 25 currency notes of 100 rupees denomination were
recovered from his house. Ext.P4 is the mahazar for the
same. PWs.3 and 4 are the witnesses to it. They did not
ascribe to the version of PW14 concerning the recovery.
PWs.3 and 4 maintained that they did not see any recovery,
but as directed by the police they signed the mahazar.
9. Similar is about the recovery of four currency notes
from the house of accused No.3. PWs.5 and 6 are the
witnesses for Ext.P9 mahazar prepared for that purpose. The
case of the prosecution is that as pointed out by accused
No.3, the currency notes were taken from his house. PWs.5
and 6 denounced that version by stating that accused No.3
was not with the police at that time. MO2 series, MO3 series
and MO4 series are the counterfeit currency notes seized
respectively under Exts.P1, P4 and P9 mahazars.
10. The fact that these are counterfeit currency notes
is not in dispute. That fact is established by Ext.P21 report
issued by Currency Notes Press, Nashik. Recovery of MOs.2, 3
Crl.Appeal Nos.421 & 422 of 2014
and 4 series currency notes from the possession of accused
Nos.1 to 3 is practically not disputed. The version of PW14
insofar as the seizure of the currency notes under Ext. P1 is
supported by PW13, who is an officer accompanied PW14 and
in whose handwriting that Ext.P1 mahazar was prepared. In
the absence of any denial, it can certainly be held that MOs 2,
3 and 4 series currency notes were seized from the
possession or custody of accused Nos.1 to 3.
11. In the aforesaid factual scenario, the question is,
whether accused Nos.1 to 3 possessed counterfeit currency
notes knowing or having reason to believe the same to be
counterfeit ones and intending to use the same as genuine.
12. The learned counsel for the appellants would
submit that in the light of the circumstances emerging from
the oral evidence of PW14 and attending circumstances, such
a knowledge cannot be attributed to accused Nos.1 to 3. In
that regard, the learned counsel for accused Nos.1 to 3 placed
reliance on Kuttan Nadar v. State [2002 (2) KLJ 362],
Habi @ Habibur Rahaman Mallick v. State of West
Crl.Appeal Nos.421 & 422 of 2014
Bengal [2023 Crl.LJ 3476] and Sk.Mukksetul and
another v. State of West Bengal [2019 Crl.LJ 1730].
13. DW4 is accused No.1. He deposed as to how he as
well as accused Nos.2 and 3 came in possession of the
currency notes in question. It is his version that he entered
into an agreement for sale of his motorcycle to accused No.4
on 27.03.2007 for Rs.45,000/- and an advance amount of
Rs.5,500/- was paid. It was the said amount that was in
possession of himself and other accused and that they never
knew that the said currency notes were counterfeit. He also
stated that he had to have a quarrel with accused No.3 at the
bus stand regarding payment of the balance brokerage
following which they were taken to police station and his son
came to the police station enquiring about them.
14. The view taken in the aforementioned decisions by
this Court as well as Calcutta High Court is that unless the
prosecution succeeded in proving that the accused possessed
currency notes with sufficient mens rea as defined in Section
489C of the IPC, he could not be convicted. It is indisputable
Crl.Appeal Nos.421 & 422 of 2014
that possession of currency notes knowing them to be
counterfeit and intention to use the same as genuine are the
essential ingredients of the offence under Section 489C of the
IPC. The question is, can from the evidence in this case such
a mens rea on the part of accused Nos.1 to 3 be
inferred?
15. In Md.Kamirul Islam v. Central Bureau of
Investigation [2024 (2) KHC 668] this Court after
considering the law laid down by a Division Bench of the
Calcutta High Court in Jubeda Chitrakar @ Jaba v. State of
West Bengal [2020 Cri.LJ 746] held that when the accused
is found carrying a sizable quantity of currency notes along a
public road in a concealed manner, that is an indicator to his
dishonest intention. It is then, for the accused to explain such
possession and lack of knowledge that the currency notes
were counterfeit ones.
16. The recital in Ext.P1 would show that on PW14
questioning, accused Nos.1 to 3 took out the currency notes
from their pockets and handed over to him. The learned
Crl.Appeal Nos.421 & 422 of 2014
counsel for accused Nos.1 and 2 raised a contention in that
regard that when DW2, a police personnel accompanied PW14
admitted after perusal of Ext.D2 a newspaper carrying the
news regarding the arrest in question that no pocket to the T-
shirt worn by the 2nd accused was visible, the version of PW14
cannot be believed. That contention does not assume any
importance inasmuch as the admitted case is that there was
recovery. The effect of it, to the maximum, is that the
recovery might not be as narrated by PW14.
17. As pointed out above recital in Ext.P1 is that
accused Nos.1 to 3 handed over currency notes. Whereas,
PW14 deposed in court that he recovered currency notes from
their possession on a search of their body. In the absence of
any independent evidence, that discrepancy carries some
importance. If accused Nos.1 to 3 voluntarily gave those
currency notes that would create an impression that they did
not have any dishonest intention in carrying those notes.
18. Similar is in respect of the recovery of currency
notes from the houses of accused Nos.1 and 3. PW14 does
Crl.Appeal Nos.421 & 422 of 2014
not have a case that in a search such currency notes were
recovered. On the other hand, the recoveries were effected on
the basis of voluntary disclosures made by accused Nos.1 and
3. In the said context the defence set forth by accused Nos.1
to 3 has to be considered.
19. DW4 deposed in court about the circumstances in
which he as well as accused Nos.2 and 3 happened to possess
the currency notes in question. Such a version brought forth
at the defence evidence stage singularly would not make any
headway in favour of the appellants. Nonetheless, the
categoric version of DW4, which is not effectively challenged
in the cross-examination, creates a doubt about the allegation
that accused Nos.1 to 3 possessed the currency notes
knowing them to be counterfeit ones. The evidence tendered
by the prosecution is not enough to explain the said doubt. It
is not a case of possession of bulk quantity of currency notes
in a concealed manner either. Taking all such aspects into
account, I am of the view that the prosecution evidence is
insufficient to prove beyond doubt that accused Nos.1 to 3
Crl.Appeal Nos.421 & 422 of 2014
possessed counterfeit currency notes knowing them to be
counterfeit ones or with dishonest intention of using them as
genuine ones. Therefore, their conviction by the trial court is
untenable in law.
20. The appeals are accordingly allowed. The judgment
dated 30.04.2014 in S.C.No.348 of 2012 of the V Additional
Sessions Court, Ernakulam is set aside. Accused Nos.1 to 3
are found not guilty of the offence under Section 489C of the
IPC and acquitted. They are set at liberty.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
